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Julam Missir And Others v. Pradip Missir And Others

Patna High Court

Aug 21, 1957

Judgment

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Factual and Procedural Background

This appeal by defendants Nos. 1 to 4 arises from a suit for declaration of title to, and recovery of possession over, properties described in Schedules B, C and D to the plaint. The plaintiffs filed a cross-objection. Defendant No. 5 is the widow of Ramkhelawan; Plaintiff No. 1 (father of Plaintiff No. 2) is Ramkhelawan's brother.

Key undisputed documentary facts: Defendant No. 1 executed a mortgage bond (exhibit 4.b) in respect of Schedule D in favour of Ramkhelawan on 24 July 1933. On 29 October 1945 defendant No. 5 executed a receipt (exhibit F) acknowledging payment of the dues under that mortgage bond and on the same date executed a bharna bond (exhibit 4.a) in respect of Schedule C in favour of defendants Nos. 2 and 3. On 4 February 1946 defendant No. 5 executed a sale deed (exhibit B) in respect of Schedule B in favour of defendant No. 4.

Plaintiffs contended that Ramkhelawan died in a state of jointness with them and that the documents executed by the widow were invalid because she had no right to execute them and did so without consideration and legal necessity. The defendants countered that Ramkhelawan had separated from the joint family before his death, that defendant No. 5 inherited his properties and had power to execute the documents, and that the plaintiffs' alleged want of consideration/legal necessity was incorrect. Defendant No. 4 further alleged that Schedule B was self-acquired by Ramkhelawan.

The trial and the first appeal resulted in findings that Ramkhelawan had died in a state of jointness, that defendant No. 5 executed the receipt and the bharna bond without consideration or legal necessity, and that defendants Nos. 2 and 3 did not make bona fide inquiry about legal necessity before entering into the transaction evidenced by the bharna bond. The courts below also found that Schedule B was acquired by the joint family in the name of Ramkhelawan, but that defendant No. 5 executed the sale deed for consideration and legal necessity so that title to half of Schedule B passed to defendant No. 4.

The suit was instituted on 17 April 1946. Defendant No. 5 executed a deed of surrender (exhibit 8) on 3 September 1946 relinquishing her entire right, title and interest in properties left by her husband in favour of the nearest reversioner. On the basis of that surrender the courts below decreed possession to the plaintiffs for Schedule C and D and half of Schedule B. The defendants (appellants) challenged these conclusions in the present appeal.

Legal Issues Presented

Whether the mutation of the widow's name in respect of the entire Schedule B property is strong or conclusive evidence that Ramkhelawan had acquired the entire Schedule B property as his separate estate (i.e., whether mutation establishes separateness of estate).
Whether section 14 (and related provisions) of the Hindu Succession Act, 1956 — providing that a female Hindu holds property she possesses as full owner — defeats the plaintiffs' suit alleging they are reversioners or otherwise affects their right to seek relief.
Whether the deed of surrender executed by defendant No. 5 on 3 September 1946 divested her of interest in the properties and whether that surrender is effective despite the pendency of the suit (i.e., whether doctrine of lis pendens prevents the surrender from operating).
Whether the documentary transactions executed by defendant No. 5 (receipt, bharna bond, sale deed) were valid given the parties' respective claims (jointness, consideration, legal necessity, separation).

Arguments of the Parties

Appellants' (Defendants Nos. 1–4) Arguments (Mr. Mitter)

First point: The lower appellate court should have held the entire Schedule B property to be the separate property of Ramkhelawan. Particular emphasis was placed on the mutation of defendant No. 5's name in register D in respect of the entire Schedule B property after Ramkhelawan's death; that mutation, when viewed with the Hindu Women's Right to Property Act, 1937, indicates she could be mutated only in respect of her husband's separate acquisitions and therefore the mutation supports separateness.
Relied on an observation of Sir Madhavan Nair in Mt. Inder Kuer v. Mt. Pirthipul Kuer (AIR 1945 P.C. 128) to support the weight to be attached to mutation of a widow's name.
Second point: Relying on section 14 of the Hindu Succession Act, 1956, he submitted that a woman holding property is a full owner (not a limited owner), so there is no question of a reversioner; on that basis the plaintiffs' suit alleging reversion should fail. He relied on Ram Ayodhya Missir v. Raghunath Missir (1956 Pat LR 486 : AIR 1957 Pat 480) and related authorities.
Responded to the deed of surrender by arguing that the surrender made during pendency should not affect defendants' rights because the doctrine of lis pendens would apply.

Respondents' (Plaintiffs) Arguments (Mr. Kailash Rai and Plaintiffs' case)

Primary factual position: Plaintiffs asserted that Ramkhelawan died in a state of jointness with them, and that the widow had no right to execute the impugned documents; those documents were consequently invalid for want of consideration and legal necessity.
On the Hindu Succession Act point, respondents contended that plaintiffs did not prosecute the suit as reversioners: after amendment of the plaint they sought recovery of possession on the ground that they became owners by virtue of the surrender executed by defendant No. 5 on 3 September 1946. That surrender took place long before the Hindu Succession Act, 1956 came into force (17 June 1956), so section 14 could not make defendant No. 5 an absolute owner at the relevant time.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mt. Inder Kuer v. Mt. Pirthipul Kuer, AIR 1945 P.C. 128	Observation that mutation of a widow's name in place of her husband's strongly supports the view that the husband had become separate in estate, though not conclusive.	The Court held that the observation is a supporting circumstance but is not conclusive; mutation must be weighed with other circumstances (e.g., production of sale deed). The trial judge's contrary finding was a factual one and binding in second appeal.
Ram Ayodhya Missir v. Raghunath Missir, 1956 Pat LR 486 : AIR 1957 Pat 480	Interpretation of sections 14 and 15 of the Hindu Succession Act, 1956: a woman becomes full owner (not limited owner), the estate becomes absolute, and a reversioner loses vested interest and right of reversion.	The appellants relied on this authority to argue plaintiffs' suit as reversioners must fail. The Court accepted the principle but found it inapplicable to defeat the plaintiffs' claim because the plaintiffs had become absolute owners by the widow's earlier surrender (3-9-1946), predating the 1956 Act.
Mt. Janki Kuer v. Chhathu Prasad, First Appeal No. 304 of 1948 (disposed 23-7-1957) ((S) AIR 1957 Pat 674)	Followed the view that a woman becomes full owner of property she acquires on inheritance or otherwise under sections 14 and 15 of the Hindu Succession Act, 1956.	Cited as a subsequent decision following the principle in Ram Ayodhya Missir; the Court treated it as confirming the proposition that a woman becomes absolute owner under the 1956 Act.
Rangasami Gounden v. Nachiappa Gounden, 46 Ind App 72 : AIR 1918 P.C. 196	Surrender by a widow is effacement of the widow — equivalent in its effect to actual or civil death, opening the estate to the next heirs.	The Court relied on this statement to characterise surrender as effecting civil death and removing the widow's interest, supporting the conclusion that the 1946 surrender revested rights in the reversioners immediately.
Prafulla Kamini Roy v. Bhabani Nath, ILR 52 Cal 1018 : AIR 1926 Cal 121	Principle that the estate which passes to a Hindu widow subsists until determined by an event which, under Hindu law, puts an end to it; surrender is such an event.	Used to support that surrender determines the widow's estate and thereby ends her limited interest in the inherited property.
Ram Krishna Prodhan v. Sin. Kousalay Mani Dasi, 40 Cal. W.N. 208 : AIR 1935 Cal. 689	Doctrine that surrender by a widow operates as self-effacement amounting to civil death and complete extinguishment of her title; prior alienations in excess of her powers are liable to be challenged immediately on such civil death.	The Court relied on this authority to show the legal consequences of surrender — that it extinguishes the widow's life interest and opens the estate to next heirs at once.
Natvarlal Punjabhai v. Dadubhai Manubhai, AIR 1950 Bom 55	Chagla C.J.'s statement that the basic principle of surrender is the destruction by the widow of her life interest by voluntary act; surrender is renunciation and not a transfer or assignment.	The Court cited this case to support the conclusion that surrender is a renunciation producing civil death, and therefore does not constitute a transfer within Section 52, Transfer of Property Act, and is not amenable to lis pendens in the manner urged by appellants.

Court's Reasoning and Analysis

The Court proceeded in distinct analytical steps, grounded in the findings of fact by the courts below and established authorities about the nature and effects of a Hindu widow's surrender:

On the mutation/ separateness point: The Court accepted that mutation of a widow's name in place of the husband is a circumstance supportive of separate acquisition (citing Sir Madhavan Nair's observation), but it is not conclusive. The Court emphasised that mutation must be weighed with other relevant circumstances — here the trial judge had considered additional evidence (for example, the sale deed produced by the plaintiffs) and arrived at a factual conclusion that the entire Schedule B property was not separately acquired by Ramkhelawan. That factual finding is binding in the second appeal and did not constitute an error of law.
On the effect of the Hindu Succession Act, 1956 (sections 14/15): The Court acknowledged the decision in Ram Ayodhya Missir and subsequent authorities that, as a general proposition, the 1956 Act makes a woman who possesses property a full owner (abolishing the earlier limited estate). However, the Court noted that the plaintiffs in this suit did not pursue their case as mere reversioners after the surrender: the plaintiffs amended their plaint and sought relief on the ground that they had become owners by virtue of the widow's prior surrender (3 September 1946). Because that surrender predated the 1956 Act, the post-Act rule converting a widow's limited estate into an absolute estate did not retrospectively defeat the plaintiffs' claim.
On the doctrine of lis pendens and the legal effect of the surrender: The appellants' contention that the surrender executed during the pendency of the suit could not affect their rights because of lis pendens was rejected. The Court reviewed authorities (including Rangasami Gounden, Prafulla Kamini Roy, Ram Krishna Prodhan and Natvarlal Punjabhai) and synthesised the law that a surrender by a Hindu widow is not a transfer or assignment but a renunciation effecting her civil death and extinguishing her limited interest. As such surrender operates immediately to vest the reversioners with the estate as if the widow had died; it is not displaced by the doctrine of lis pendens in the manner argued by the appellants.
Consequential application to the facts: Because defendant No. 5's surrender on 3 September 1946 effectively extinguished her limited interest, the plaintiffs ceased to be mere reversioners and became absolute owners, and their suit for possession and declaration could properly succeed in respect of Schedules C and D and half of Schedule B (as the courts below had decreed). The Court therefore found no merit in the two principal points raised by the appellants.

Holding and Implications

Holding: The appeal is dismissed.

Consequences and implications as stated by the Court:

The appeal by defendants Nos. 1 to 4 is dismissed with costs.
The cross-objection filed by the plaintiffs was not pressed by counsel and is therefore dismissed, but without costs.
By reason of the deed of surrender executed by defendant No. 5 on 3 September 1946, defendant No. 5 ceased to have any interest in the disputed properties, and the plaintiffs became absolute owners; the decrees of the courts below awarding possession in respect of Schedule C and D and half of Schedule B were upheld by implication in disposing of the appeal.
The Court did not purport to lay down any new principle of law beyond applying established authorities on the nature and effect of surrender by a Hindu widow and on the construction of the Hindu Succession Act, 1956; the result was based on the facts (including the timing of the surrender) and binding factual findings of the courts below.

D.R.R — as appearing in the opinion. Appeal dismissed.

Show all summary ...

1. This appeal by defendants Nos. 1 to 4 arises out of a suit for declaration of the title to, and recovery of possession over, properties, described in schedules B, C and D attached to the plaint. The plaintiffs have also filed a cross objection. Defendant No. 5 is the widow of one Ramkhelawan. Plaintiff No. 1 the father of plaintiff No. 2 is Ramkhelawan's brother.

2. Defendant No. 1 had executed a mortgage bond (exhibit 4.b) in respect of the property described in Schedule D in favour of Ramkhelawan on the 24th July, 1933. On the 29th October, 1945, defendant No. 5 executed a receipt (exhibit F) in favour of defendant No. 1 acknowledging payment of the dues under that mortgage bond. On the same date, defendant No. 5 executed a bharna bond (exhibit 4.a) in respect of the property described in Schedule C in favour of defendants Nos. 2 and 3. On the 4th February, 1946, defendant No. 5 executed a sale deed (exhibit B) in respect of the property described in Schedule B in favour of defendant No. 4. These facts are not in dispute.

3. Shortly stated, the plaintiffs' case is that Ramkhelawan thed in a state of jointness With them and that the documents referred to above are invalid because defendant no. 5 had no right to execute them and also because she executed them without consideration and without any legal necessity.

4. The common defence of defendants Nos. 1, to 4 is that Ramkhelawan had separated from the plaintiffs before his death that defendant No. 5 inherited the properties left by Ramkhelawan that he had a right to execute the aforesaid documents, and that the plaintiffs' case relating to want of consideration and legal necessity is wrong. Defendant No. 4 has further alleged that the property described in schedule B which was covered by the sale deed (exhibit B), was the self acquired property of Ramkhelawan and that the plaintiffs had in any event, no right to that property.

5. The Courts below have found that Ramkhelawan thed in a state of jointness with the plaintiffs, and that defendant No. 5 executed the receipt (exhibit F) and the bharna bond (exhibit 4.a) without any consideration or legal necessity. The lower appellate Court has further found that the defendants Nos. 2 and 3 did not make any bona fide enquiry about the existence of legal necessity before entering into the transaction evidenced by the bond (exhibit 4.a). Both the Courts below have also come to the conclusion that the property described in Schedule B was acquired by the joint family in the name of Ramkhelawan, that defendant No. 5 executed the sale deed (exhibit B) for consideration and legal necessity and that title to half of the Schedule B property, therefore, legally passed to defendant No. 4.

6. It appears that the suit was instituted on the 17th April, 1946, and defendant No. 5 executed a deed of surrender (exhibit 8) on the 3rd September, 1946, rehnquishing her entire right, title and interest in the properties left by her husband, Ramkhelwan in favour of the nearest reversioner. In view of this deed of surrender, the Courts below have passed a decree for possession in favour of the plaintiffs in respect of the Schedule C and D properties and half of the Schedule B property.

7. Appearing on behalf of the appellants, Mr. Mitter has raised two points. The first point is that the lower appellate Court should have held the entire schedule B property to be the separate property of Ramkhelawan and it has erred in not attaching due weight to the fact that, after Ramkhelawan's death the name of defendant No. 5 was mutated in register D in respect of that property in its entirety.

8. In support of this argument, he has relied upon an observation of Sir Madhavan Nair in Mt. Inder Kuer v. Mt. Pirthipul Kuer, AIR 1945 P.C 128 at p. 130 (A). The observation relates to the mutation of a widow's name in place of that of her husband and is as follows.—

“This instance of mutation strongly supports the view that Sheo Singh before his death must have become separate in estate from Mathura Singh for, if they were joint, mutation would in the normal course be in the name of Mathura Singh and not in the name of the widows:”

9. Mr. Mitter's argument is that, in view of the provisions of the Hindu Women's Right to Property Act, 1937 defendant No. 5 was entitled to be mutated in respect of the properties held by her husband only and that she could not be mutated in respect of the entire joint family properties in which the share of her husband at the time of his death was only half.

10. He has contended that the fact that she was mutated in respect of the entire schedule B property is a fact which, in accordance with the observations of their Lordships must be held to show that her husband separately acquired the whole of that property, and other members of the joint family had no concern with it. I am unable to accept this contention. The observations quoted above do not show that the mere fact that a widow's name is mutated in place of that of her husband is conclusive proof of the fact that her husband was separate from other members of the family though it is a circumstance which strongly supports that view. This circumstance has to be considered along with other circumstances. The learned District Judge has in this case, considered some other circumstances including the circumstance that the sale deed standing in Ramkhelawan's name was produced by the plaintiffs. After careful consideration and in spite of mutation of the name of defendant No. 5 in place of that of Ramkhelawan he has been unable to hold that the entire property was acquired by Ramkhelawan alone. I do not think that he has committed any error of law in this respect. The finding which he has arrived at is a finding of fact and is binding upon this Court in second appeal.

11. The second point which Mr. Mitter has urged is based upon the Hindu Succession Act, 1956. He has drawn my attention to section 14 of that Act which provides that a female Hindu shall hold any property which she possesses as full owner and not as a limited owner, irrespective of whether she acquired that property before or after the commencement of this Act. He has submitted that, in view of this section, a woman holding property is no longer a limited owner but a full owner and there is, therefore no question of there being a reversioner. On this basis, he has further argued that the plaintiffs suit on the allegation that they are reversioners must fail in respect of both schedules B and C properties. In support of his arguments, he has drawn my attention to Ram Ayodhya Missir v. Raghunath Missir, 1956 Pat LR 486 : (S) AIR 1957 Pat 480) (B). In that case, a Bench of this Court had to consider the effect of sections 14 and 15 of the Hindu Succession Act, 1956. Their Lordships observed:

“The effect of these sections is that the plaintiff in the present case is no more a reversioner and that the estate of Mosammatt Parkalo Kuer is not a limited estate but an absolute estate and that the plaintiff has no vested interest in the property nor has he a right of reversion or any kind of spes successiouis. If that is the effect of sections 14 and 15 of the Statutes, it must be taken that the plaintiff has no right to bring a suit for a declaration that the sale deed executed by Mosamatt Sureha Kuer in favour of defendants 2 and 3 was a farzi or collusive document or that there was no legal necessity.”

12. This decision has been followed in the unreported case of Mt. Janki Kuer v. Chhathu Prasad First Appeal No. 304 of 1948, disposed of on 23-7-1957: ((S) AIR 1957 Pat 674) (C). It is, therefore, clear that a woman becomes full owner of a property which she acquires on inheritance or otherwise.

13. Mr. Kailash Rai, appearing on behalf of the respondents, has however, contended that the very basis on which Mr. Mitter has founded his argument is absent in the sense that the plaintiffs have not prosecuted this suit in the capacity of reversioners. He has pointed out that the plaintiffs got their plaint amended and thereafter they made a prayer for recovery of possession, in their favour on the ground that they had become owners of the properties in dispute on surrender made by the widow, defendant No. 5. He has submitted that the widow made the surrender on the 3rd September, 1946, and divested herself of her entire interest in the properties left by her husband long before the Hindu Succession Act of 1956, came into force on the 17th June, 1956 and hence she cannot be held to have become an absolute owner of these properties in accordance with the provisions of that Act.

14. Mr. Mitter has replied that the deed of surrender cannot affect the defendants' rights because the surrender having been made by a party to the suit during its pendency the doctrine of lis pendens will apply. This argument seems to me to proceed upon a misconception of the nature and implication of the doctrine of surrender by a Hindu widow. A Hindu female now acquires an absolute estate under the Hindu Succession Act, 1956 in any property which she possesses. Before the Act same into force, she acquired only a limited estate which constituted an obstruction between the last full owner and the next full owner. By means of surrender she could effect the removal of that obstruction and destruction of her estate. It operated as her self effacement and complete renunciation amounting to her civil death.

15. Lord Dunedin, who delivered the judgment of the Judicial Committee in Rangasami Gounden v. Nachiappa Gounden, 46 Ind App 72 : (AIR 1918 PC 196) (D), observed as to the nature of surrender as follows:—

“it is the effacement of the widow an effacement which in other circumstances is effected by actual death or civil death which opens the estate of the deceased husband to his next heirs at that date.”

16. In Prafulla Kamini Roy v. Bhabani Nath, ILR 52 Cal 1018 : (AIR 1926 Cal 121) (E), Pane, J. observed at page 1038 (of ILR Cal): (at p. 129 of AIR).

“The estate which passes to a Hindu widow by way of inheritance from her husband subsists until it is determined by the happening of some event which, according to the principles of Hindu law, puts an end to it. It is seeded law that one of the events which effect the determination of a widow's estate is the surrender of her entire interest in the inherited property to the next reversioners.”

17. This view was accepted by a Bench of the Calcutta High Court in Ram Krishna Prodhan v. Sin. Kousalay Mani Dasi, 40 Cal. W.N 208 : (AIR 1935 Cal. 689) (F). D.N Mitter, J. stated at page 214 (of Cal WN): (at p. of AIR):

“We think the logical consequence of the doctrine surrender which means a self effacement of the widow and amounts to a civil death and complete extinguishment of the title of the widow in her husband's estate is that all prior alienations in excess of her powers are liable to be challenged immediately on her civil death just as they could be impeached after she had thed”

18. It is obvious that the words which I have underlined (here into ‘’) are important as showing what surrender implies.

19. A full Bench of the Bombay High Court has considered and followed the decisions referred to above in Natvarlal Punjabhai v. Dadubhai Manubhai, AIR 1950 Bom 55 (G). In that case Chagla, C.J has observed.

“As I shall presently point out and as the later decisions of the Privy Council make it clear, the basic principle of surrender is the destruction by the widow by her voluntary act of her life interest in her husband's estate.”

20. He has again observed at page 59 of the report.

“I should again like to emphasise that a surrender by a Hindu widow according to Hindu law is not so much a transfer or an assignment of her life interest to the next reversioners as a renunciation in favour of the next reversioners. The significance of renunciation is very different from the significance that attaches to the conception of a transfer or an assignment.”

21. It is perfectly from the decisions cited above that surrender by a Hindu widow did not amount to a transfer or assignment of her interest in the properties held by her as a limited owner, but it amounted to her complete removal of herself in so far as the estate was concerned. To all intents and purposes, therefore, surrender of her interest by a Hindu widow had to be treated in so far as the property left by the last full owner was concerned, as if her natural death had taken place. Hence, it cannot be held that by making the surrender, defendant No. 5 “transferred or otherwise ??? with” the properties in dispute within the meaning of Section 52 of the Transfer of Property Act.

22. That being so, it is manifest that the surrender made by defendant No. 5 is not it by I the doctrine of lis pendens embodied in that I section. It follows that the surrender became effective as soon as it was made and defendant No. 5 having already effected her civil death, ceased to have any interest whatsoever in the properties in dispute. The plaintiffs then ceased to be reversioners and became absolute owners of those properties. In these circumstances it cannot be held that defendant No. 5 became the owner of the properties when the Hindu Succession Act of 1956 came into force or that the plaintiff's suit is liable to fail. There being no merit in any of the two points raised by Mr. Mitter the appeal is dismissed with costs. Mr. Kailash Rai has not pressed the cross objection, and that is also, therefore, dismissed but without costs.

D.R.R

23. Appeal dismissed.